986 F.

2d 1416

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of

unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Robert S. JACKSON, a/k/a Ali Jackson, a/k/a Ali Jameson,
Defendant-Appellant.
No. 92-5580.

United States Court of Appeals,

Fourth Circuit.
Submitted: January 13, 1993
Decided: February 17, 1993

Appeal from the United States District Court for the Eastern District of
Virginia, at Alexandria. T. S. Ellis, III, District Judge. (CR-92-75-A)
Justin M. Miller, Jacobovitz, English & Smith, Alexandria, Virginia, for
Appellant.
Richard Cullen, United States Attorney, Gerald J. Smagala, Assistant
United States Attorney, Marcus J. Davis, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
E.D.Va.
DISMISSED.
Before HALL, PHILLIPS, and HAMILTON, Circuit Judges.
PER CURIAM:

Following a guilty plea, Robert S. Jackson was convicted on one count of

conspiracy to manufacture, to distribute, and to possess with intent to distribute

fifty grams or more of cocaine base in violation of 21 U.S.C. 846 (1988), and
one count of using and carrying a firearm during a drug trafficking offense in
violation of 18 U.S.C.A. 2 & 924(c)(1) (West 1985 & Supp. 1992). The
district court sentenced Jackson to 360 months in prison on the narcotics count
and to sixty consecutive months on the firearms count. Contending that his
sentence was excessive, Jackson appealed. We find that Jackson waived his
right to appeal; consequently, we grant the Government's motion to dismiss this
appeal.
2

Jackson and five co-defendants were charged in a twenty-five count indictment

for various crimes relating to a conspiracy to manufacture and distribute crack
cocaine. All of Jackson's co-defendants pled guilty and agreed to testify against
him. Several attempts were made to reach a plea agreement with Jackson, but
each time Jackson rejected the offered settlement. After the trial began and
three witnesses testified against him, Jackson decided to enter a plea agreement.

Under the terms of the plea agreement, Jackson pled guilty to two counts of the
indictment: (1) unlawfully, knowingly, and intentionally conspiring to
manufacture and distribute cocaine base and (2) knowingly and unlawfully
carrying and using firearms in relation to a drug trafficking offense. He also
"knowingly waive[d] the right to appeal the sentence (or the manner in which it
was determined) on the grounds set forth in Title 18, United States Code,
Section 3742 or on any ground whatever." The district court conducted a Rule
11 inquiry to determine whether Jackson's guilty plea was knowing and
voluntary and whether the plea had a factual basis. As part of the inquiry, the
following exchange occurred:

4
Judge
Ellis: And do you understand also that under the guidelines you would have
the right to appeal your sentence, but in your plea agreement, you have waived that
right of appeal?
5Jackson: Yes.
6

At the end of the Rule 11 colloquy, the judge accepted Jackson's guilty plea
and sentenced him to a total of 420 months in prison. Jackson appealed.

Finding no meritorious grounds for appeal, Jackson's attorney filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967). The brief states that
Jackson believes that his sentence is too severe, but notes that Jackson had
waived his right to appeal. The Government filed a motion to dismiss the
appeal based on Jackson's waiver of his right to appeal. This Court notified

Jackson of his right to submit a brief, but he did not file one.
8

The Government contends that Jackson's appeal should be dismissed because

he stated in the plea agreement that he knowingly waived the right to appeal his
sentence. It is well established that the Constitution does not guarantee the right
to an appeal. Abney v. United States, 431 U.S. 651, 656 (1977). This Court
consistently has held that a defendant may waive his statutory right to appeal
his sentence if the waiver was knowingly and voluntarily made. United States
v. Marin, 961 F.2d 493, 496 (4th Cir. 1992); United States v. Wiggins, 905
F.2d 51, 53 (4th Cir. 1990). Whether waiver of an appeal was made knowingly
and voluntarily is subject to de novo review in this Court. Marin, 961 F.2d at
496.

A waiver will not be deemed "knowingly and voluntarily made if the district
court fails to specifically question the defendant concerning the waiver
provision of the plea agreement during the Rule 11 colloquy and the record
indicates that the defendant did not otherwise understand the full significance of
the waiver." Id. (citing United States v. Wessells, 936 F.2d 165, 168 (4th Cir.
1991)). In this case, the district court twice told Jackson that the Sentencing
Guidelines provide a right to appeal, but that under the plea agreement, Jackson
waived the right to appeal on any ground. Jackson responded that he
understood the terms of his agreement. He also stated that he understood that
even if his sentence was more severe than he expected, he still would be bound
by the plea agreement. Moreover, Jackson testified that no one tried to force
him to plead guilty and that he was pleading guilty freely, willingly, and
voluntarily because he was in fact guilty. We find, therefore, that Jackson
knowingly and voluntarily waived his right to appeal.

10

Jackson's sole challenge to his conviction is that the sentence imposed on him
was too severe. Although in some circumstances an improper sentence justifies
an appeal even where the defendant waived an appeal, in Marin this Court held
that allegations of improper application of the Guidelines do not:

11 defendant who waives his right to appeal does not subject himself to being
[A]
sentenced entirely at the whim of the district court. For example, a defendant could
not be said to have waived his right to appellate review of a sentence imposed in
excess of the maximum penalty provided by statute or based on a constitutionally
impermissible factor such as race. However, the sentence that Marin seeks to appeal
is not such a sentence. Assuming the district court committed the errors that Marin
alleges, his complaints at most rest on an improper application of the guidelines and
a violation of a procedural rule.

12

13

961 F.2d at 496. We find nothing in the record or briefs to show that the
sentence imposed on Jackson violates his constitutional rights or otherwise
justifies appellate review despite his appeal waiver.
For these reasons, we grant the Government's motion to dismiss Jackson's
appeal. In accordance with Anders, we have examined the entire record and
find no other meritorious issues for appeal.* We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the Court and argument would not aid the decisional process.
DISMISSED

In a letter to the district court judge, Jackson requested new counsel on appeal
(a request denied by this Court), contending that his trial lawyer scared him
into pleading guilty, refused to raise certain issues, and did not properly advise
him as to the sentence he could receive. An ineffective assistance of counsel
claim should be raised by motion under 28 U.S.C. 2255 (1988) in district
court and not on direct appeal, unless it "conclusively appears" in the trial
record that counsel did not provide effective representation. United States v.
Fisher, 477 F.2d 300, 302 (4th Cir. 1973). It does not conclusively appear that
Jackson's counsel failed to provide effective representation. The letter
contradicts Jackson's statements during the Rule 11 colloquy and the sentencing
hearing that he was satisfied with his counsel's services. Therefore, we will not
address the issue of ineffective assistance of counsel; Jackson may raise this
claim in a 2255 motion if he chooses